On May 23, 2022, Governor Newsom signed  
AB-35, amending several provisions of the Medical Injury Compensation Reform Act (MICRA) and making important changes to the law governing recovery in medical malpractice cases. 

Most notably, AB-35 changes the law regarding attorneys’ compensation and the amount plaintiffs can receive in medical malpractice lawsuits.  
These changes and their impact on health care providers are discussed below. 

Originally passed in 1975, the law  
was intended, in the words of the California Supreme Court, to “reduce insurance costs by limiting the amount and timing of recovery in cases of malpractice.”  
To that end, MICRA includes several provisions designed to limit recovery in cases of malpractice against health care providers. 

Since 1975, there have been several attempts to change and increase the MICRA upper limits and restrictions.  
Until recently, such attempts have not always been successful. 

Now, with the enactment of AB-35, plaintiffs under the 47-year-old MICRA provision will see new noneconomic damages caps and  
their attorneys will face additional legal fees through a revised contingency fee schedule. 

The new law takes effect on January 1, 2023 and affects lawsuits filed after that date. 

Litigation filed before December 31, 2022 will be subject to MICRA’s longstanding rules, caps and limitations on compensation amounts. 

Below is an analysis of the provisions that remain the same as those in MICRA that were changed by AB-35. 

MICRA Changes 

Contingency Fee Recovery 
 Contingency attorneys' fees for individuals seeking damages in these cases  
are limited by Business and Professions Code Section 6146, which provides for attorneys' fee caps that can be awarded at decreasing rates as various thresholds are reached. 

The current system allows  attorneys to recover 40 percent of the first $50,000, 33 percent of the next $50,000, 25 percent of the next $500,000,  and 15 percent of anything over $600,000.

AB-35 modifies these provisions by increasing the attorney fee cap to 25%  for settlements executed prior to the filing of a complaint or request for arbitration  
, and to 33% for recoveries resulting from a settlement, arbitration, or judgment after the filing of a complaint or request for arbitration. 

This may lead to more frequent litigation due to higher fees and greater interest in representing these types of claims. 

Recovery of Non-Economic Damages
 Currently, Civil Code Section 3333.2 limits the amount recoverable for non-economic losses to $250,000. 

This includes compensation for pain, discomfort, bodily harm and other non-compensatory damages.  
In addition, in the case of (wrongful) death, the total amount that each heir can recover is $250,000. 

AB-35 removes this restriction and imposes new restrictions based on whether the act would result in a wrongful death. 

AB-35 increased the cap on non-wrongful death coverage amounts to $350,000,  
increasing by $40,000 each January 1 for 10 years until it is capped at $750,000 in 2023. 

AB-35 would increase the maximum damages for wrongful death to $500,000, and  
increase each year on January 1 for the next 10 years, up to a total of $1 million in 2033. 

From 1 January 2034, the limits for both will be adjusted upward by 2% to account for inflation. 

Periodic Payments
 Civil Procedure Code Section 667.7  
provides that a superior court may order a judgment in a breach of trust action to be completed by periodic payments upon the request of one of the parties.  
This provision applies to judgments where the total amount of the award exceeds $50,000. 

AB-35 modifies this provision so that judgments cannot be split into periodic payments unless they exceed $250,000.  
This would require insurers to hold more liquidity to pay out more money more quickly, which would result in higher premiums. 

These revisions and amendments to MICRA are argued to strike a careful, patient-centered balance between  fair compensation for injured patients and the need for universal,  high-quality, cost-effective health care. 
Supporters of the MICRA amendments report that they are willing to put the interests of California patients ahead of divisive political positions.  
Increasing the amount of attorney fees that can be collected and the amount that plaintiffs can recover in lawsuits  
will provide incentives to initiate lawsuits and increase the number of lawsuits. 

Simply put, as the compensation limit is raised, lawyers are expected to be more proactive in taking on medical malpractice cases.

Q.

I injured my arm while skiing a few months ago. 

The doctor who treated me at the time of the accident said it was a simple bruise, but the pain in my arm continued, so I recently went to see another doctor.  
Surprisingly, he told me that my arm was fractured at the time of the accident and that I currently need surgery to straighten the bone. 

I feel so wronged that I ended up having to have surgery because of my previous doctor's misdiagnosis.  
Can I file a medical malpractice lawsuit against that doctor?

A.

I often consult with people who are faced with situations where they suspect medical accidents, and their unfortunate and unfair stories.  
Medical accidents are a great misfortune that can occur in unexpected situations, but because there are strict rules regarding medical malpractice,  
it is much more difficult to prove malpractice and receive appropriate compensation than in other cases. 

In reality, patients do suffer adverse outcomes as a result of medical procedures, but  
the medical practices that produced those outcomes may be considered reasonable under the circumstances. 

Additionally, because doctors have chosen medically accepted methods of treatment and diagnosis, they  
may be held legally liable even if it turns out that there are other, better, medically acceptable methods. 

Another difficulty with medical malpractice cases is that there are limits to the compensation that can be given to the injured patient.  
In California, compensation for “pain and suffering,” or non-economic losses, is limited to $250,000.  
However, the economic costs of future medical expenses and future income can be compensated for by agreement. 

Because there are such strict rules regarding medical malpractice, if you suspect a medical accident,  
you should always consult with an experienced medical malpractice attorney. 

If a medical malpractice attorney believes that your case is sufficiently suspicious of medical malpractice, he or she  
will review all of your medical records with a competent physician in the field to determine whether your previous doctors were negligent. He or  
she will then determine who the potential defendants (e.g., doctors, hospitals, nurses) are and the extent of your damages. 

After that, your attorney can file a claim for damages against the doctor's insurance company or decide to file a lawsuit immediately.  
The important thing is the issue of appropriate compensation for damages, and  
in reality, it costs a lot of money to hire medical experts when proceeding with a lawsuit, in addition to the law limiting compensation for non-economic losses. 

Therefore, your attorney should carefully consider settling through a pre-litigation demand letter  to compare the pros and cons of proceeding with litigation and settling, so that more of the settlement money can be returned to the client  .

<Statute of limitations for medical malpractice lawsuits: within 3 years from the date of injury, or within 1 year from the date the plaintiff discovered the injury, or from the date the plaintiff reasonably should have discovered the injury>

Q.

I was recently diagnosed with a large tumor in my breast, and my doctors recommended immediate surgery.  
As a result, I had a mastectomy and completed my first round of chemotherapy. 

I told my oncologist that I had a chest x-ray 3 years ago, and  
my doctor didn't mention anything about the tumor at that time.  
My oncologist said that the tumor was so large that it could have shown up on the chest x-ray I had 3 years ago. 

Then I got an X-ray film from 3 years ago and showed it to my oncologist,  
who was able to find the tumor in its early stages. 

I am so upset and angry that my doctor at the time made a major mistake in not finding my cancer.  
What legal options do I have?

A.

First of all, I am very sorry to hear about your diagnosis, and I hope you recover quickly. 

If an X-ray from three years ago actually showed a tumor, but your doctor did not see it and  
did not order tests such as a mammogram or biopsy, then this clearly appears to have been medical malpractice. 

If your cancer had been found early, you may have been able to avoid a mastectomy, or  
the tumor may have been successfully treated without surgery. 

First of all, you should contact an experienced medical malpractice attorney for a consultation, as there are strict rules regarding medical malpractice. 

The statute of limitations for bringing a lawsuit in a medical malpractice case is three years from the date of injury, or one year from the date the plaintiff discovered  
or reasonably should have discovered the injury. 

The central issue in cases of cancer misdiagnosis is whether or not a diagnosis of cancer was delayed could have changed the treatment.  
For example, if your doctor correctly diagnosed your breast cancer three years ago and  
you would have needed the same mastectomy at that time, your doctor cannot be held negligent.  
However, if the diagnosis of breast cancer three years ago did not indicate that you needed a mastectomy,  
your doctor cannot be held liable for medical malpractice for not detecting the breast cancer at that time. 

If your attorney believes that your case is sufficiently suspicious of medical malpractice,  
he or she will request all of your medical records.  
A competent physician in the field will review those records and determine that your previous doctors were negligent.  
Your attorney will then determine who the potential defendants (e.g., doctors, hospitals, nurses) are and  
the extent of damages you are entitled to. 

Your attorney will either file a claim against the negligent doctor’s insurance company for damages, or you can decide to file a lawsuit immediately.  
One of the most common types of medical malpractice cases is misdiagnosis or delayed diagnosis of cancer. 

This is especially true for breast, lung, and colorectal cancers. Most cases of breast cancer negligence are due to errors in medical examinations.  
And incorrect diagnosis of lung cancer is often responsible for lung removal. 

When there is a delay in cancer treatment or the cancer is allowed to metastasize due to a misdiagnosis, patients often have to undergo more difficult forms of treatment, and  
in some cases, even death. 

Some common examples of negligent actions by physicians when they fail to properly diagnose cancer include: 

• Failure to request mammograms, misinterpretation of mammograms 
• Failure to diagnose the tumor as benign and perform a biopsy 
• Ignoring patient complaints about symptoms 
• Failure to refer patients to specialists for more detailed examinations 
• Failure to adequately protect patients from increased risk 
• Misclassification of the type of malignancy and incorrect grading of the extent of progression 
• Failure to order additional radiographic examinations, biopsies, or ultrasound examinations 

If you believe that your physician's failure to diagnose and treat your cancer in a timely manner  
may have resulted in a loss of treatment options or a loss of chance of survival, please contact my office immediately. 

You may have a legitimate claim for damages for an incorrect cancer diagnosis and may be entitled to compensation for your injuries.

Q.

Why are plastic surgery medical malpractice lawsuits so hard to win?

A.

If you have had plastic surgery and are unhappy with the results, it can be very difficult to accept.  
You may even want to file a plastic surgery malpractice lawsuit against the doctor who performed the surgery. 

If so, it is definitely worth consulting a medical malpractice attorney.  
However, it is true that winning a plastic surgery medical malpractice lawsuit is very difficult.  The reality is that 
medical malpractice attorneys will not take on a case unless the evidence of malpractice is clear and certain from the beginning of the lawsuit  
. 

The most difficult cases in California involve medical malpractice, and unless there is clear evidence of malpractice,  
you are not guaranteed to win. 

Even in cases where there is clear and convincing evidence of medical malpractice, defense attorneys aggressively dispute  liability for medical malpractice, causation,  and damages.

Plastic surgery cases are much harder to win in court. 

Jurors are known to be unsympathetic to victims of cosmetic surgery mistakes  
because they assume the victim chose the surgery solely for aesthetic reasons, not for health reasons. 

Any type of surgery, including plastic surgery, carries risks.  
From severe swelling and bruising to the inability to properly heal wounds, there are always risks. 

Individuals who have undergone surgery are generally aware of the types of risks associated with it, and therefore juries are generally not sympathetic. What  
the jury and judges generally look for is whether the surgeon was negligent in some way  
or whether the injury was caused by the common risks associated with this type of surgical procedure. 

The standard of care defense is that a poor outcome does not mean malpractice or unreasonableness.  
Patients may suffer poor outcomes from medical procedures, but  
the medical practice that caused the outcome may have been considered reasonable under the circumstances.  
Another common defense is that the doctor is not liable because he chose a medically accepted method of treatment and diagnosis,  
even if it turns out that there is another medically acceptable method that is better. 

When you have suffered a medical malpractice injury, which can be very difficult to prove negligence for, consulting with a medical malpractice attorney  
can go a long way in helping you understand whether or not you have a chance of winning your case.